Criticism against the judiciary – The Phantom Busybody

Much ado has been made about Datuk Zaid Ibrahim’s describing the judges of the Court of Appeal as heartless following their decision in the Indira Gandhi unilateral conversion case.

Personally, I would urge the judiciary to learn to deal with such criticism by simply ignoring them unless there is a gain of truth in such criticism. In an increasingly globalised world where freedom of speech is recognised as an irreducible minimum in human rights, the judiciary must move with the times and not insist upon sticking to Malaysian “standards”.

The United Kingdom, which is the main source of our rich common law heritage, had in 2013 enacted the Crime and Courts Act which abolished the offence of scandalising the judiciary as a form of contempt of court. Judges in the UK have been subjected to some of the most trenchant criticism.

A classic example involved former Northern Ireland secretary Peter Hain who criticised Lord Justice Girvan's handling of a judicial review application in his autobiography, describing the judge as "off his rocker" i.e insane.

When debating on his amendment to the Crime and Courts Bill, Lord Pannick criticised the decision to prosecute Mr. Hain. He remarked that “…surely a former Secretary of State, or indeed any citizen, should be able to express his views about a judge without being threatened with a prison sentence.

If the attorney-general for Northern Ireland is going to revive this otherwise moribund branch of the criminal law, Parliament should kill it off before it does any further damage. There is simply no justification today for maintaining a criminal offence of being rude about the judiciary – scandalising the judges or, as the Scots call it, murmuring judges.”

Lord Pannick also went on to say that “We do not protect other public officials in this way. Judges, like all other public servants, must be open to criticism because, in this context as in others, freedom of expression helps to expose error and injustice. It promotes debate on issues of public importance.

A criminal offence of scandalising the judiciary may inhibit others from speaking out on perceived judicial errors. I would be surprised to learn that this view was not shared by the vast majority of serving judges… Since the Attorney General of Northern Ireland has woken up this pitiful legal animal, we should take this opportunity to put it finally to sleep.”

In the United States, a recent dissent by the Chief Justice of the Supreme Court in the case of Obergefell v Hodges 2015 invited acerbic criticism from Richard Posner, a judge of the lower Seventh Circuit court. He had this to say – “…the chief justice’s dissent is heartless...Gratuitous interference in other people’s lives is bigotry.” Posner was quite simply describing the chief justice as heartless and a bigot. Yet he was not prosecuted.

As if describing judges as heartless in statements or articles is not enough, 27 years ago, the Association for Children for Enforcement of Support presented “Heartless” awards to two judges of the Tuscaloosa County Circuit Court, Judge Conger and Judge Jim Embry. The awards were presented to recognise the two individuals as the worst judges for showing lack of concern of enforcement of child support.

I would call upon the Malaysian judiciary to emulate the spirit of Lord Denning when he held in the case of R v Commissioner of Police (1968): "Let me say at once that we will never use this jurisdiction (of contempt) as a means to uphold our own dignity.

That must rest on surer foundations. Nor will we use it to suppress those who speak against us. We do not fear criticism, nor do we resent it. For there is something far more important at stake. It is no less than freedom of speech itself."

The most effective shield and breastplate of a judge is his reputation of integrity, impartiality, and wisdom. An upright judge will almost never have to resort to the power to convict for contempt in his judicial office.

* The Phantom Busybody reads The Malaysian Insider.